The Week When The UK Lost The Brexit Plot, And My Sympathy

UK and EU citizen rights are now being negotiated in the new Brexit plot twist: will they be enhanced and expanded or reduced?

UK and EU citizen rights are now being negotiated in the new Brexit plot twist: will they be enhanced and expanded or reduced?When historians look back at Brexit, dates will be remembered for different reasons: the flawed referendum campaign, the death of Jo Cox, the result itself, triggering Article 50, and the general election that misfired, to name a few. This week will be remembered as the week when the UK really lost the Brexit plot. After the utopic desires for a free market especially made for the UK, and an open border that contravenes EU laws and spirit, came UK Brexit negotiator David Davis’ confirmation that he had not understood the EU’s proposals concerning UK citizens.

It’s one thing being against EU ideals, but scorning the EU who had promised to maintain its citizens’ rights as they now stand, is bang out-of-order. What David Davis forgets to mention is that because the UK offer concerning citizens’ rights falls well short of that of the EU, the latter cannot be implemented if the UK does not provide reciprocity.

These latest comments have not only severely disappointed me, but have made the UK lose my sympathy. I’m not one to be vindictive, but if the UK economy does really suffer after Brexit, I won’t shed a tear. Furthermore, far from feeling bad in having to get a French passport that I have never deemed necessary, having always used a British one, I do not feel like renewing my UK passport when it expires in 5 years time. It’s a symbolic gesture, I know, but it’s one that symbolises the predicament EU citizens in the UK and British expats in the EU are in. The fact that the EU may be prepared to “down” its proposals for British citizens living in the EU, and that the UK propositions fall so short of our present rights, only confirm the fact that we are caught in the cross-fire between London and Brussels. I feel like a child whose bickering parents forgot that I ever existed and ignore the fact that I understand every word they are saying. The problem is that I might end up hating them both.

In a letter addressed to the House of Lords EU committee, David Davis shares his “concerns” that the EU will only permit British citizens to reside in the country they find themselves in at the time of Brexit,

The EU’s offer only guarantees residence rights in the member state in which a British national was resident at the point of our exit from the EU.

This is factually wrong. The EU’s offer on citizens rights, which was drafted long before the UK’s offer, specifically states that the rights of British citizens currently living in an EU member state will not be affected.

The Agreement should safeguard the status and rights derived from Union law at the withdrawal date…Citizens should be able to exercise their rights through smooth and simple administrative procedures.

The protected rights include free movement within the EU and the right of residency.

The Agreement should cover at least the following elements…The residence rights and rights of free movement derived from Articles 18, 21, 45 and 49 of the Treaty on the Functioning of the European Union and set out in Directive 2004/38.

The UK holds the view that the EU is limiting this right to the country of residence at the time of Brexit. According to a UK document comparing the relative positions of the UK and the EU concerning freedom of movement, it is stated that the UK proposes that British citizens maintain freedom of movement in the EU, and that this contrasts with the EU proposal, restricting residency to the country of residence at the time of Brexit.

In a detailed briefing on the current positions of the EU and the UK, the European Parliamentary Research Service clearly reiterates that the EU’s wish is to safeguard existing rights to residence for EU nationals in the UK and UK citizens in the EU. The implementation of these rights should be overseen by the European Court of Justice.

The EU aims at a withdrawal agreement which safeguards the existing right to residence…By contrast, the UK’s intention is to create new rights, detached from EU law, whose conditions will be governed by UK law.

The EU briefing also seems to suggest that because the UK proposals are limited to EU nationals and that the UK is asking for reciprocal conditions for UK nationals in the EU,

the UK appears to concede that UK nationals would have a less favourable status in the EU than under current EU rules.

This argument seems to contradict David Davis’ comments relating the more favourable UK proposals.It all seems to point to the fact that both the UK and EU are playing with words, not realising that they are, in fact, playing with people’s lives.

The French philosopher, Jacques Derrida, made a name for himself with his “deconstruction” of language, with particular reference to the written word. He suggested that words possess incomplete meaning which has to be completed by the use of other words. The latter also have to be clarified by other words. And this goes on, and on, and on…The true meaning of a word is never brought to light as new information is given. It is just continually “deferred.” An additional problem is that not only do you need infinite information over the words that you use, but must also consider how these words “differ” from those that you don’t use.

Complex laws, such as those contained in EU treaties, are subject to gross interpretation and misinterpretation. This ongoing subjective analysis and interpretation of the written word applies both to those who read texts and those who write them. Furthermore, our views and interpretations of the written word are also expressed by language. The very same thing is being used as a tool and the object the tool is trying to make.

How can a language be at the once the most “rigorous” and the most “unreliable” source of knowledge? These problems operate as a positive technique for making trouble.

(C. Norris – Deconstruction, Theory and Practice)

The EU directive 2004/38 has been taken into UK law, together with all other rights of EU citizens. However, since once the UK leaves the EU, the directive will no longer apply within its borders, the loss of EU rights after Brexit poses the complex problem of acquired rights. The latter could be defined as subjective rights originating under a certain legal system, and remaining in force in a different legal system from the original one, be it in space or in time. If acquired rights are considered to be irreversible and binding, then these rights will be protected against changes in the law.

In her foreword to the Great Repeal Bill, Theresa May alludes to the fact that EU laws will be integrated into UK laws, only to be changed and/or modified at a later date.

Our decision to convert the “acquis” – the body of the European legislation – into UK law at the moment we repeal the European Community Act is an essential part of this plan. This approach will provide maximum certainty as we leave the EU. The same rules and laws will apply on the day after exit as on the day before. It will then be for democratically elected representatives in the UK to decide on any changes in that law, after full scrutiny and proper debate. – Theresa May, 2017

Several cases emanating from international law demonstrate that the notion of acquired rights being untouchable in the face of radical external changes, is a fallacious one and, “as a rule, once the act or legal situation from which the subjective rights stem is terminated, those rights expire.” 1 That individuals may be adversely affected by the loss of these rights does not change the fact that the rights may be legally annulled. Unless, of course, that the rights become independent of the treaties that created them. In other words, “once the period of validity of a European regulation for a state ends, the rights created by it must end.”1

Whether EU rights will cease for EU citizens in the UK and British citizens in other member states, will depend on (i) the UK’s legislation and judges and (ii) the EU’s legislation and judges, respectively. It is theoretically conceivable that British citizens living in other member states end up in a more favourable position, concerning EU rights, than their EU counterparts living in the UK, who would have to defend their current status against UK legislation – something that has already been condemned by Swedish minister Ann Linde.

A recent announcement by Mark Rutte that Dutch nationals taking up British citizenship would lose their Dutch nationality underscores my profound mistrust of both the UK and the EU – mistrust that I harboured ever since the UK referendum took place. It is not a coincidence that I have asked for a French passport, but proof of my insecurity and doubts concerning the outcome of the Brexit negotiations. It would have been a strong message of solidarity sent to the UK by the EU, if Mark Rutte had made an exception and allowed Dutch citizens the possibility to acquire UK citizenship in order to make their future and the future of their families more secure after Brexit. His attitude concerning dual-citizenship goes even further than the views expressed by Marine Le Pen in France.

It all amounts to cause for concern, despite the chivalrous words from Guy Verhofstadt.

The European Union has a common mission to extend, enhance and expand rights, not reduce them. We will never endorse their retroactive removal. The European parliament will reserve its right to reject any agreement that treats EU citizens, regardless of their nationality, less favourably than they are at present. This is a question of the basic fundamental rights and values that are at the heart of the European project. – Guy Verhofstadt, 2017

Come March 2019, it is quite possible that these words may have been definitively deferred, and Derrida proven right when he wrote “there is no outside-text.” Interpreting the texts relating to EU citizens’ rights is certainly no exception to the rule.